By Michael Selinger

The Federal Court of Australia has imposed significant penalties on the CFMMEU after it found the union breached workplace right of entry laws when it targeted BKH Group construction sites under the guise of genuinely held safety concerns.

The decision (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42) is one of many decisions that highlights the need for employers to ensure that rights of entry are not used by unions for improper purposes.

However, employers must also take caution when seeking to block or hinder entry to their workplace, because such action could result in substantial civil penalties if the exercise of the right of entry was lawful.

What is a lawful workplace entry?

Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act) provides a framework for unions to lawfully enter workplaces to meet with their members, or investigate suspected safety concerns or breaches of the FW Act.

Entry permits

A union official must hold a valid entry permit before exercising a right of entry. The two permits are:

• FW Act entry permit
• Work Health & Safety Act 2011 (NSW) (or State or Territory equivalent) (WHS Act) entry permit.

entry permit.

Right of entry under the WHS Act

A union official wanting a right of entry to a workplace in respect of safety concerns must hold both the FW Act and WHS Act entry permits.

The permit holder’s entry to the workplace is strictly regulated by the FW Act and WHS Act, which require the permit holder to:

• prior to entry hold a reasonable suspicion of a contravention of WHS Act requirements in relation to a union member or an employee eligible to be member of the union at the workplace, prior to entry (where means a union member, employee eligible to be a member of the union, or a worker at the workplace or whose industrial interests the union is entitled to represent);
• provide the required notice of entry;
• only enter the workplace during its usual working hours;
• comply with the employer’s safety instructions;
• avoid obstructing any person or disrupting work; and
• visit only those areas directly related to the health and safety of the worker/s and where the worker/s work.

Valid types of entry and notice requirements

Where the permit holder has a reasonable suspicion of a WHS contravention that relates to a relevant worker at the workplace, they have the right to enter the workplace to:

• inquire into a suspected contravention: In this case, the permit holder needs only to provide notice as soon as practicable after entry unless that would defeat the purpose of the entry or cause unreasonable delay to the permit holder in an urgent matter.
• inspect employee records or information relevant to the suspected contravention: For example, records on plant and equipment repairs and maintenance. In this case, the permit holder must provide between 24 hours and 14 days’ notice of the proposed entry.
• to consult and advise workers on WHS matters: In this case, the permit holder must provide between 24 hours and 14 days’ notice of the proposed entry.

ABCC v CFMEU & Ors – a reasonable suspicion?

The facts

During its enterprise agreement campaign in the months leading up to March 2015, a number of CFMEU (as it was then called) officials entered at least two BKH Group construction sites in Sydney to investigate suspected safety breaches.

The ABCC alleged that the suspected safety breaches were a guise for the CFMEU and its officials to exert additional pressure on BKH to sign the CFMEU’s enterprise agreement.

In its campaign, the CFMEU was found to have engaged in aggressive and ‘arrogant’ conduct, including:

• sending targeted text messages threatening to ‘smash’ one of the sub-contractor’s jobs to set an example if it refused to sign the Union’s enterprise agreement;
• entering worksites citing safety concerns without valid entry permits and despite the employers refusing the officials entry;
• entering a worksite and disrupting a major concrete pour, citing safety concerns of people working under a concrete boom during the pour; and
• entry and exit blockages.

The decision

Of the workplace entries, Justice Flick found that the CFMEU officials were not motivated by any genuine safety concerns nor were there any reasonable grounds for holding such concerns.

For example, the concrete boom issue was only identified after the initial entry, rendering it to be of no relevance to the lawfulness of the entry. Instead, and irrespective of the merit of any other safety concern (which on the facts such merit was rejected), the CFMEU officials on the site acted in concert and with a common objective to disrupt work as much as possible and coerce BKH to sign the CFMEU enterprise agreement.

Justice Flick’s decision was, in part, made on the basis that following BKH’s acquiescence to the terms of the CFMEU enterprise agreement, the CFMEU’s safety concerns disappeared, its officials stopped attending the BKH worksites, and the CFMEU did not follow up to inspect whether its expressed safety concerns had been addressed.

Moreover, the insistence for wanting immediate site access was telling because the worksites already had a safety committee and WHS officer on site who was a CFMEU delegate.

In seeking penalties against the CFMEU and its officials, the ABCC did not seek any personal payment orders against the officials of the kind recently endorsed by the High Court of Australia in ABCC v CFMEU (2018) 273 IR 211.

For their breaches, Justice Flick imposed penalties of $237,000 against the CFMMEU of which $104,000 was imposed for its right of entry breaches, and penalties totalling $76,000 against the CFMMEU officers, of which $29,000 was imposed for their right of entry breaches.

Justice Flick also made an order that the CFMMEU take out advertising of the fact the Federal Court found the Union had engaged in the contraventions and the penalties it imposed.

Lessons for employers

This case reinforces the need to remain vigilant to right of entry requests, particularly during times of enterprise bargaining and industrial unrest.

Where such a request or notice is provided, employers should always ask the official to produce valid FW Act and WHS Act entry permits and require that they provide the specifics of their safety concerns.

It may be that legal advice should be sought to consider whether the request can reasonably be said to have been made for a legitimate safety purpose, particularly in the context of any industrial activity.